Industrial Court of Kenya, Phelesia Olukunga v. The Board of Trustees Association for Better Land Husbandry and Rodney Jim Keneally, 28 February 2014, Case No. 927
Constitution of Kenya (2010)
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
Sexual harassment , Protection against discrimination in employment and occupation
Use of international law as a guide for interpreting domestic law
Sexual harassment/ Gender-based violence/ Gender-based discrimination/ Use of international law as a guide for interpreting domestic law
The claimant was hired by the Board of Trustees of the Association for Better Land Husbandry, her immediate boss being Mr Rodney Jim Keneally. The claimant travelled to a regional conference in Swaziland in the company of her boss with a stopover in Cape Town. In that city, Keneally began to make sexual advances toward Olukunga. When she ignored these advances, Keneally became annoyed and hit the claimant. The claimant returned to Nairobi and Keneally travelled on to the conference alone. When Keneally returned to Nairobi, he sent various threatening e-mails to the claimant, subsequently dismissing her for alleged misconduct in South Africa.
In his defence, Keneally alleged that he had not hired the claimant, and that the Court did not have jurisdiction over the case because the events had taken place in South Africa. Additionally, Keneally argued that sexual crimes are personal affairs that have nothing to do with work, and should, therefore, be heard in a criminal court.
The Industrial Court ruled that the Employment Act of 2007 and the Labour Institutions Act afforded the Court the jurisdiction to hear the case, since it was a matter related to employment as the claimant had been hired to work in Kenya and had been dismissed in that country. The Court also found proof of the existence of an employment relationship between Keneally and the claimant in the form of a contract signed by Keneally on behalf of the association subject to the dispute. Moreover, the claimant reported to Keneally on her work, and he was also responsible for issuing leave to the claimant when she was sick.
Having read various e-mails sent by Keneally to Olukunga, the Court concluded that the claimant’s contract had been terminated as a punishment for the claimant’s lack of response to Keneally’s sexual advances. The Court ruled that the events in South Africa constituted one episode in a case of continual gender-based violence and sexual harassment in the workplace as defined in section 6 of the Law on Employment of 2007.
The Court then referred to the definition of violence against women enshrined in Article 1 of the UN Declaration on the Elimination of Violence against Women. Moreover, it referred to ILO Convention No. 111 and the pronouncements of the ILO Committee of Experts on the Application of Conventions and Recommendations stating that:
“Further guidance on what would amount to Gender-Based violence is available from the 1988 General Survey of the Committee of Experts of the ILO, conducted on the Application of ILO Convention 111. The Committee listed examples of sexual harassment that may supplement Section 6 of the Employment Act 2007.”4
Having referred to the definition of discrimination established in Article 1 of ILO Convention No. 111, the Court then underlined that the importance of that Convention in policy and law in Kenya was emphasized by its inclusion under paragraph D of the Industrial Relations Charter. Despite the fact that the claimant did not allege that she had been discriminated against, in the Court’s view it was clear that in the light of the aforementioned instruments she had been the victim of sexual discrimination.
In conclusion, the Court, making use of the aforementioned international instruments and the work of the ILO Committee of Experts in interpreting domestic legislation, ordered the defendants to pay compensation to the claimant for unfair and wrongful dismissal and the sexual harassment to which she was subjected.